Concluding thoughts from Ada, Ohio.

• Author: Gerber, Scott Douglas
• Position: Political theory of an independent judiciary

A recent issue of the Journal of Legal Education contains an impressive empirical study that most law professors can confirm without the use of the complicated "network analysis" employed by the study's authors: Both law faculty hiring and how quickly new paradigms of legal scholarship suffuse the academy turn in no small part on whether the candidate trying to land a top law school teaching job or the proponents of the legal movement attended Harvard or Yale. (1) That is what makes it so remarkable that a Symposium was convened at Harvard Law School on March 29, 2011, to discuss the issues of judicial independence raised in a new book by a law professor from Ohio Northern University. (2) That the commentators included such academic luminaries as Steven G. Calabresi, William R. Casto, Charles G. Geyh, Stephen B. Presser, Jed H. Shugerman, G. Alan Tarr, and Mark V. Tushnet compels me to try to explain, albeit briefly, how this could have occurred and why it matters that it did.

1. FROM ADA, OHIO TO CAMBRIDGE, MASSACHUSETTS

   It means more to me than the distinguished scholars who commented on A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 can ever know that they had such a positive reaction to my book. (3) But I suspect that most of them would not have known about the book had it not been published by a leading academic press such as Oxford University Press. Why did Oxford decide to publish the book? Because, unlike the way in which publication decisions are made by law students who run the nation's law journals, my manuscript was sent out by an experienced acquisitions editor for anonymous peer review by scholars in my field. Apparently, it did not matter to the acquisitions editor or to the anonymous peer reviewers that I neither attended Harvard or Yale nor taught at Harvard or Yale. All they cared about was whether I had written an important book. Fortunately for me, they concluded that I had, which was nice to hear after spending a decade or so researching and writing it.

   The fact that my book was published by Oxford University Press was almost certainly a necessary condition for the decision to convene a Symposium at Harvard. It was not, however, a sufficient condition. I have no doubt whatsoever that the Symposium became a reality only because Steven Calabresi thought the subject of judicial independence to be significant enough that the Harvard Journal of Law & Public Policy should host a Symposium about it. Although I have come to learn that Professor Calabresi is one of the most modest people in the American law professoriate, as co-founder and chairman of the Federalist Society, he also is one of the most important. I am grateful to the student editors for organizing the Symposium, and I am grateful to Professor Calabresi for encouraging and introducing the Symposium. (4)

2. ANSWERING GORDON WOOD'S CALL

   The Symposium was both a lot of work and an enjoyable event. More important than any of that, however, is why it matters that it took place. A number of the participants were kind enough to reduce their remarks about judicial independence to writing. I have learned much from reading them. I would be remiss if I did not devote the remainder of these concluding thoughts to explaining why I wrote A Distinct Judicial Power and to suggesting several lessons that can be gleaned from it.

   The answer to why I wrote the book is simple: I had just finished writing a book on Clarence Thomas's jurisprudence, (5) and I was thinking about what to take on next. I kept coming across stray comments here and there by Gordon S. Wood, the preeminent historian of early America, that someone needs to write a book about the origins of judicial independence in the United States. Professor Wood said so four decades ago in his magisterial The Creation of the American Republic, (6) and he said so many times thereafter. (7) He issued his most detailed statement on the matter in an endowed lecture at Suffolk University Law School:

   In the massive rethinking that took place in the 1780s nearly all parts of America's governments were reformed and reconstituted--reforms and reconstitutions often justified by ingenious manipulations of Montesquieu's doctrine of "separation of powers." But the part of government that benefited most from the rethinking and remodeling of the 1780s was the judiciary. There in the decade following the Revolution was begun the remarkable transformation of the judges from much-feared appendages of crown power into one of "the three capital powers of Government"--from minor magistrates tied to the colonial executives into an equal...